2. Challenge in this appeal is to
the judgment of learned Single Judge of the Kerala High Court dismissing the
Revision Petition filed by the appellant. On the allegation that on 13.8.1999
the accused was found to be in possession of 4 litres of arrack made in
Karnataka in 40 packets, each containing 100 ml. It was held that the accused
was guilty of offence punishable under Section 55(a) of the Kerala Abkari Act,
1077.

3. Law was set into motion as the
prosecution was of the view that the accused was in possession of liquor in
contravention of the provisions of the Act. Five witnesses were examined to
further the prosecution version. Accused pleaded innocence. Learned Principal
Assistant Sessions Judge, Thalassery found the appellant guilty for commission
of offence and sentenced him to under simple imprisonment for three years and
also to pay a fine of Rs.1,00,000/- with default stipulation. An appeal was
preferred before the Sessions Court, Thalassery which was dismissed. In the
revision, the basic contention was that the alleged offence was committed on
13.8.1999 the seized property was produced in the Court on 16.8.1999. There was
three days delay which was fatal. Before the High Court it was alternatively
submitted that the sentence as imposed was high. The High 2 Court noted that
the offence was detected on 13.8.1999 by PW-4, a Sub-Inspector of Police,
Iritty and his police party while they were on patrol duty. While they reached
near the bus stop the accused appellant was seen alighting from a bus with
cloth bag in his hand. Getting suspicious PW-4 tried to stop him. The accused
hurriedly crossed the road and ran away. He was chased and apprehended by the
police party and on examination of the cloth bag in his hand it was found that
the same contained 40 packets of some liquid suspected to be some illicit
arrack. The contraband liquor was seized.

The contents of two out of 40
packets were emptied into a bottle and sealed. Before the sample bottle was
seized, the accused as well as the properties were taken to the police station
where the registration of the case was done. The articles were seized at 6.40
in the afternoon. Samples were produced in Court on 16.8.1999 and till then they
were in safe custody. The letter of the Magistrate clearly shows that when the
articles were produced before him they were packed and sealed.

3

4. The survey of the Chemical
Analyst (Exh. P-6) shows that seal of the sample bottle tallied with the specimen
seal separately sent. It was noted that possession of arrack, import and export
transaction, storage and sale of arrack in the State of Kerala was totally
banned w.e.f. 3.6.1997. The appellate authority while upholding the conviction
dismissed the appeal, but the sentence was reduced to one year. In revision, no
interference was done by the High Court.

5. Learned counsel for the
appellant submitted that the evidence on record does not make out a case for
conviction and in any event the sentence is harsh.

6. Learned counsel for the
respondent-State on the other hand supported the order.

7. Section 55 of the Act so far as
relevant reads as follows:

"For illegal import, etc:-
Whoever in contravention of this Act or of any rule or order made under this Act-
4 (a) imports, exports, transports, transits or possesses liquor or any
intoxicating drug; or (b) manufactures liquor or any intoxicating drug;

(c) xxx (d) taps or causes to be
tapped any toddy- producing tree, or (e) draws or causes to be drawn toddy from
any tree; or (f) constructs or works any distillery, brewery, winery or other
manufactory in which liquor is manufactured; or (g) uses, keeps or has in his
possession any materials, still, utensil, implement or apparatus whatsoever for
the purpose of manufacturing liquor other than toddy or any intoxicating drug;
or (h) bottles any liquor for purposes of sale; or (i) sells or stores for sale
liquor or any intoxicating drug;

shall be punishable (1) for any
offence, other than an offence falling under clause (d) or clause (e), with
imprisonment for a term which may extend to ten years and with fine which shall
not be less than rupees one lakh and (2)for an offence falling under clause (d)
or clause (e) with imprisonment for a term which may extend to one 5 year, or
with fine which may extend to ten thousand rupees, or with both.

Explanation:- For the purpose of
this section and section 64A, "intoxicating drug" means any
intoxicating substance, other than a narcotic drug or psychotropic substance
regulated by the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central
Act 61 of 1985), which the Government may by notification declare to be an
intoxicating drug."

8. Undisputedly, the case at hand
is one which is covered by Section 55(a) of the Act. Two types of punishments
are provided in section 55. One is relatable to offence other than the offence
falling under clause (d) or clause (e) where the imprisonment is extended to 10
years and with fine which shall not be less than rupees one lakh. Offence
falling under clause (d) and (e) carry lesser term of sentence which may extend
to one year or alternatively with fine which may extend to rupees ten thousand
or with both.

9. The words "two years and
with fine which shall not be less than twenty five thousand rupees, and"
have been 6 substituted by Act 16 of 1997 w.e.f. 3.6.1997 with the expression
"ten years and with fine which shall not be less than one lakh and".
There is no minimum sentence provided but the outer limit of the punishment is
10 years. At the same time imposition of fine of rupees one lakh is statutorily
provided without any exception.

10. Considering the peculiar facts
of the case we direct reduction of the sentence to 9 months. The amount of fine
which is stated to have been deposited is maintained.